9911796707
TMI Blog2007 (4) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... S. No. 1892 of 2002 against one M/s. T. Madhava Rao and Company represented by its 3 partners including the petitioner herein and obtained a money decree. The petitioner herein has been arrayed as 3rd defendant in the said suit. The suit was decreed on 30.12.2002. Thereafter, the respondent has filed the execution petition in E.P. No. 1892 of 2004 against the above referred firm and its partners including the petitioner herein. In the said execution petition, the petitioner filed an application in E.A. No. 1050 of 2005 in E.P. No. 1892 of 2004 under Section 47 C.P.C. to dismiss the execution petition filed by the respondent herein. The said application has been contested by the respondent by filing a detailed counter. The learned X Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) As per Section 32(3) of the Indian Partnership Act, 1932 (hereinafter called the Act ), the partners continue to be liable to third parties if any act done by them prior to their retirement. (c) The petitioner has not given any notice as contemplated under Section 72 of the said Act and hence, the plea of the petitioner that he has retired from the firm and he is not liable to pay any amount to the respondent after his retirement on 1.8.2001 cannot be accepted. 5. I have heard that the learned Counsel appearing for the petitioner and the respondent. 6. It is an admitted case that the cause of action for the suit arose on 12.11.1998, 14.1.2000, 20.11.2000 and 30.3.2001. It is further admitted that the petitioner reti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment by an agreement made by him with such third party and the partners of the reconstituted firm, and such agreement may be implied by a course of dealing between such third party and the reconstituted firm after he had knowledge of the retirement. (3) Notwithstanding the retirement of a partner from a firm, he and the partners continue to be liable as partners to third parties for any act done by any of them which would have been an act of the firm if done before the retirement, until public notice is given of the retirement; Provided that a retired partner is not liable to any third party who deals with the firm without knowing that he was a partner. (4) Notices under Sub-section (3) may be given by the retired partn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P-6 certificate of posting sheet will not establish that it has been served on the respondent. Before going into the aspect whether the letter sent by the petitioner through certificate of posting to the respondent can be construed as proper notice or not, it has to be seen whether sending of such notice is sufficient or not. 9. In this connection, it will be useful to refer to Section 72 of the said Act which deals with the mode of giving public notice. The said provision reads as follows: 72. Mode of giving public notice.-- A public notice under this Act is given-- (a) where it relates to the retirement or expulsion of a partner from a registered firm, or to the dissolution of a registered firm, or to the election to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 72 does not contemplate notice only to the Registrar of Firms or publication in the official gazette or in one vernacular newspaper. The said Section makes it very clear that all the modes referred to above have to be followed when it relates to the retirement or expulsion of partner, etc. Since the petitioner has not followed two modes, namely, notice to the Registrar of Firms under Section 63 of the Act and publication in the official gazette, it can be safely concluded that the petitioner has not followed the mode of giving public notice as contemplated under Section 72 of the said Act. 12. The next question that has to be gone into is whether the petitioner has sent any notice to the respondent/decree-holder about his retirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement notice to the respondent even if it is taken that it has been sent and even if it has been taken that the certificate of posting is a proper mode, the said notice is dated 31.8.2001 which is subsequent to the cause of action for the suit. (c) The petitioner could be said to be discharged from liability to third party like the respondent only if there is an agreement with the respondent and the partners of the reconstituted firm. Admittedly, there is no agreement between the respondent and the petitioner or the partners of the reconstituted firm. Furthermore, such agreement cannot be treated impliedly also, since the respondent denies about the receipt of the notice under Ex.P-5 dated 31.8.2001. (d) The petitioner has not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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